The Ethics Commission has received and reviewed your request for approval to accept a donation from St. Andrew’s Lutheran Church in Wheaton, MD. You have provided the following information to the Commission:

The Church has recently upgraded their system and would like to donate:

1 Brother HR-125 Printer (valued at $200)

1 IBM Personal Computer with Monitor and Keyboard (valued at $250)

You have indicated that there was no solicitation of the Church to make this donation and that they are donating this equipment freely and with no expectations. In addition, they have designated that the donation is being made to the Special Operations Division of the Police Department.

In considering your request, the Commission reviewed Section 19A-16(e) removing unsolicited gifts to a County agency from the prohibitions of Section 19A(c) which concerns accepting gifts under certain circumstances. Therefore, the Police Department is free to accept the donation.

Thank you for bringing this matter to the attention of the Ethics Commission and please don’t hesitate to contact our office if you have any questions concerning this or any other matter.

BMM: bmcn

[Advisory Opinion 1995-2]

March 21, 1995

Re: Request for Advisory Opinion Regarding Secondary Employment

Dear [name withheld]:

You have requested an advisory opinion and, if necessary, secondary employment approval and/or a waiver to permit you to perform legal services for an existing client of Jay L. Cohen, Chair, Montgomery County Ethics Commission. You have provided the following information in support of your request.

Mr. Cohen has asked you to assist him in the preparation and trial of a matter for an existing client of his. The trial is scheduled for June 1995. Your compensation will be contingent upon the outcome of the trial and, in the event of a settlement or favorable verdict, you will be compensated on an hourly basis for the work you perform for the client. You will be employed by the client, rather than by Mr. Cohen. Also, you noted that you have been a part-time legal consultant for the duration of your appointment as a Commissioner on the Ethics Commission. You explained that the trial is consistent with your continuing self-employment as a professional. Mr. Cohen also indicated that the case did not involve Montgomery County as a party and that the assignment will be temporary. In addition, he stated that he does not anticipate the work to result in a conflict of interest, because he has observed you as highly competent and able to remain impartial in your analysis of issues that arise before the Ethics Commission.

The sections of the Ethics Law which may be involved in this request are:

Section 19A-12 of the Montgomery County Code 1994, as amended, which states in part:

(a) General restrictions.

(1) A public employee must not engage in any other employment unless the employment is approved by the Commission. The Commission may impose conditions on its approval of other employment.

* * *

(b) Specific restrictions. Unless the Commission grants a waiver under subsection 19A-8(b), a public employee must not:

* * *

(2) hold any employment relationship that would impair the impartiality and independence of judgment of the public employee.

(c) Exceptions. Subsections (a) and (b) do not apply to:

* * *

(3) a member of a board, commission, or a similar body in regard to employment held when the member was appointed if the employment was publicly disclosed before appointment to the appointing authority, and to the County Council when confirmation is required . . . .

Section 19A-8(b) provides:

(b) After receiving a written request, the Commission may grant a waiver of the prohibitions of subsection 19A-12(b) or Section 19A-13 if it finds:

(1) the waiver is needed to ensure that competent services to the County are timely and available;

(2) failing to grant the waiver may reduce the ability of the County to hire or retain highly qualified public employees; or

(3) the proposed employment is not likely to create an actual conflict of interest.

Based upon the information provided, the Ethics Commission has decided that you do not need secondary employment approval to engage in the proposed litigation with Mr. Cohen. This matter is consistent with your self-employment as an attorney, which was publicly disclosed before your appointment to the Commission. The Commission sees no conflict of interest in the proposed work arrangement and agrees with Mr. Cohen that your independent judgment will not be impaired as a result of the work. Even if the Commission had determined that a waiver were necessary, the circumstances described in your letter and Mr. Cohen’s letter suggest that the provisions of subsections 19A-8(b)(2) and (3) have been satisfied. Not only would the failure to grant such a waiver reduce the ability of the County to hire or retain highly qualified Commissioners, but the proposed employment is not likely to create an actual conflict of interest.

If you have any questions regarding this decision, please do not hesitate to contact the Ethics Commission.

You have requested approval from the Ethics Commission for the Montgomery County Police Department to participate in the Tip-A-Cop Program in conjunction with Red Lobster Restaurant. The materials you provided describing the program indicate that local police officers spend an evening at the restaurant helping to serve customers and asking customers to contribute to the fundraising effort for the Special Olympics. Among the rules associated with the program is a prohibition against the officers serving alcohol, which is consistent with existing restrictions. You also indicated that the Police Department has participated in the Law Enforcement Torch Run for Special Olympics in the past.

The materials provided by Red Lobster indicate that the restaurant does a good business on the evening which they designate for the Tip-A-Cop program and that the servers usually receive larger tips than usual, despite the additional donations being made to the Special Olympics. The funds that are raised are then divided between the World Games, the local Law Enforcement Torch Run, and the Torch Run Final Leg; all donations are made in the name of Red Lobster.

The pertinent sections of the Ethics Law are as follows:

Section 19A-14 of the Montgomery County Code 1994 provides:

(a) A public employee must not intentionally use the prestige of office for private gain or the gain of another . . . .

(b) Unless expressly authorized by the Chief Administrative Officer a person must not use an official County agency title or insignia in connection with any private enterprise.

Section 19A-16 of the Montgomery County Code 1994 provides:

(a) A public employee must not solicit a gift;

* *

(1) from any person who

* * *

(C) owns or operates a business that is regulated by the County agency with which the public employee is affiliated...

* * *

(b) However, a public employee may solicit a gift:

***

(3) from any person, during official work hours, while identifiable as a public employee, or at a County agency, for the benefit of a County agency or a nonprofit organization formally cooperating on a program with a County agency if the solicitation is authorized by the County Executive . . . in an order . . . .

This particular program involves cooperation between employees of a County agency and a private enterprise that is operated for profit. Based upon the facts presented and the applicable sections of the Ethics Law, the Ethics Commission must deny the request for the Montgomery County Police Department to participate in the Tip-A-Cop Program with Red Lobster. The nature of the restaurant precludes the establishment of an Executive Order that would permit the solicitation of donations pursuant to Section 19A-16(b)(3) of the Ethics Law, quoted above. Moreover, in light of the representation of Red Lobster that their business increases and profits on the evenings of the program, the participation of police officers would be using the prestige of office for private gain of another.

This decision does not address the Law Enforcement Torch Run in which the department has participated in the past. The Tip-A-Cop Program, however, is prohibited by the Ethics Law, because in the process of collecting funds for a charity, the officers are promoting a non-charitable organization and that private organization then donates the funds in its own name.

If you have any questions regarding this decision, please do not hesitate to contact the Commission.

You have requested a waiver of the Ethics Law to permit you to participate on the Qualification and Selection Committee (QSC) for the bid for the claims adjusting service for the County’s Self-Insurance Fund.

In your letter, you indicate that you were on QSC in 1991. Since that time, your sister-in-law has become employed by the current claims administrator, Trigon. You explained that your relationship will not impair your impartial evaluation of the bids.

The Ethics Law provides:

Prohibitions. Unless permitted by a waiver, a public employee must not participate in:

(1) any matter that affects, in a manner distinct from its effect on the public generally, any:

* * *

(C) property or business in which a relative has an economic interest,

Section 19A-11(a) of the Montgomery County Code 1994, as amended.

To obtain a waiver, the following criteria must be established:

(1) the best interests of the County would be served by granting the waiver,

(2) the importance to the County of a public employee performing his or her official duties outweighs the actual or potential harm of any conflict of interest, and

(3) granting the waiver will not give a public employee an unfair advantage over other members of the public.

Section 19-8(a) of the Montgomery County Code. The Ethics Law further defines a relative to include the spouse of sibling, e.g., a sister-in-law. Section 19-4(n) of the Montgomery County Code.

Based upon these provisions of the Ethics Law, the Ethics Commission must deny your request to participate on the QSC. The information contained in your letter is insufficient for the Commission to make the necessary findings quoted above. If you would like to provide additional information addressing these criteria, the Commission will reconsider your request.

If you have any questions regarding this decision, please do not hesitate to contact the Commission.

The Ethics Commission received and reviewed your memorandum of January 13, 1995.

In that memorandum, you indicated that very soon your division will issue an RFP for third party claims administration services for Montgomery County and that it is possible that one of the organizations expected to bid is a former employer. You stated that you had been employed by this company between 1982 and 1987. You further indicated that you have no financial connection with this company.

Due to your past association with this company, you have requested that the Commission determine whether you would have a conflict of interest if you participate on the Qualification and Selection Committee regarding this RFP.

Section 19A-11(a)(1)(B) of the Ethics law states:

" . . . Unless permitted by a waiver, a public employee must not participate in:

(A) any matter that affects, in a manner distinct from its effect on the public generally, any:

(B) business in which the public employee has an economic interest.

(C) property or business in which a relative has an economic interest, if the public employee knows about the relative’s interest."

Since you have advised us that you have no current or future economic interest in these companies, no conflict of interest exists and you do not require a waiver of this provision of the Ethics Law. Accordingly, you may participate in both the bid process as well as the administration of the contract if it is awarded to either company.

Please contact our office if you have any further questions regarding this matter.

RE: Request for Advisory Opinion—Policy to Prohibit Acceptance of Food and Beverages From Regulated Businesses

You have rquested an advisory opinion from the Montgomery County Ethics Commission involving a policy which your division would like to implement. Specifically, you have indicated that, although the Montgomery County Ethics Law permits a public employee to accept meals from a business that the employee regulates, you are in the process of establishing a policy for your employees that would prohibit acceptance of food and beverages. You have asked whether this is consistent with the Ethics Law and whether there is a problem with the policy you propose.

As you have indicated, the Ethics Law provides:

(c) A public employee must not knowingly accept a direct or indirect gift from any individual or organization that the public employee knows or reasonably should know:

* * *

(3) owns or operates a business that is regulated by the County agency with which the public employee is affiliated; . . . .

§19A-16(c)(3) of the Montgomery County Code 1994, as amended. The Ethics Law also provides that the above-quoted provision does not apply to "meals and beverages under $50 per event or a higher amount, not to exceed $100, that the Commission sets . . . ." §19A16(d)(a) of the Montgomery County Code.

Accordingly, the policy you have proposed would forbid behavior which is otherwise permitted by the Ethics Law. There is nothing in the Ethics Law, however, which would prohibit your department from imposing and enforcing such a policy on your staff. The question of whether or not the Ethics Commission could also enforce such a policy is a different matter, and may be controlled by 19A-3 of the Montgomery County Code. That provision reads as follows:

If any other County statue or regulation relating to conflicts of interest, financial disclosure, or lobbying disclosure is more stringent than this law, the more stringent provision applies.

In accordance with that provision, the Ethics Commission regularly enforces "regulations" issued by other Departments which are more stringent than the Ethics Law. A "policy", however, is not as formal as a "regulation". It thus remains unclear whether or not the Ethics Commission would be required to enforce such a policy, or even if it would have the power to do so. This is especially so in your case, because the proposed policy would forbid something which the Ethics Law specifically allows.

In conclusion, please be advised that the Ethics Commission has ruled as follows: (1) That the issuance and enforcement of such a departmental policy would not violate the Ethics Law, and (2) That the Ethics Commission would require more details concerning the proposed policy or regulation before it can rule concerning whether or not the policy or regulation would be enforceable by the Commission pursuant to §19A-3 of the Montgomery County Code. In that regard, the Ethics Commission further suggests that you may find it helpful to consult with the County Attorney’s Office to determine the most effective and appropriate mechanism for establishing the policy you are contemplating (e.g., a policy, a "regulation", a reporting requirement, the maintenance of a special log, a public v. intradepartmental disclosures, and/or an outright prohibition).

If you have any questions concerning this advisory opinion, please do not hesitate to contact the Commission.

You have requested an advisory opinion from the Montgomery County Ethics Commission regarding your application for appointment as a voting member of the Montgomery County Mental Health Advisory Committee (MHAC) to represent the legal profession. You have provided the following information in support of your request.

You are employed full-time as a policy attorney at the United States Equal Employment Opportunity Commission (EEOC) and work on issues involving the Americans with Disabilities Act (ADA) and its coverage of individuals with psychiatric disabilities. You previously submitted a request for advice with this Commission, when you applied for appointment in 1993. You have explained that your duties include coordinating regulations and other policy issues prepared by federal agencies which involve EEO directly or indirectly. You also answer letters, give informal advice and prepare policy documents addressing issues that focus on the ADA and psychiatric disabilities. On your own time, you indicate that you may write an article about psychiatric disabilities and ADA without compensation. If you are appointed to the MHAC, you state that you would recuse yourself from all votes involving the ADA, the EEOC, or other civil rights matters related in any way to your employment.

The MHAC is established to achieve a variety of goals, including to monitor the allocation of mental heath services within the County, to determine the needs of the County mental heath system, and to recommend to the County Government appropriate allocation of funds and appropriate priorities for State and County comprehensive mental health plans. §24-38 of the Montgomery County Code 1994, as amended. The composition of the MHAC appears in §24-34 of the Montgomery County Code 1994, and includes seven voting members selected from 14 categories of individuals, one of which is "the legal profession in the County". §24-34(b)(1) of the Montgomery County Code. As the Commission explained in its opinion to you in 1993, the Ethics Law prohibits a public employee from participating in a matter that affects, in a manner distinct from its effect on public generally, any business in which the public employee has an economic interest. §19A-11(a)(1)(B) of the Montgomery County Code. A member of a committee is specifically included within the definition of "public employee" §19A-4(m) of the Montgomery County Code. Furthermore, a public employee is prohibited from participating in a matter if the public employee knows or reasonably should know that any party to the matter is any business in which the public employee is an employee. §19A-11(a)(2)(A) of the Montgomery County Code.

Based upon the conditions you propose, the Ethics Commission agrees that you may participate on the MHAC if appointed. This means that you should recuse yourself from all votes on issues involving the ADA, the EEOC, or other civil rights matters related to your employment. In addition, as we indicated previously, the Commission assumes that your employment with the EEOC will be publicly disclosed prior to appointment and that you will not use any confidential information acquired from membership on the MHAC for private matters or for your work with the EEOC.

If you have any questions concerning this advisory opinion, please do not hesitate to contact the Commission.

The Ethics Commission has reviewed your request for guidance regarding the acceptance of a twenty-five dollar gift certificate from a client, [name2 withheld]. You provided the following information to the Commission:

[name2 withheld], a county resident, was issued seven civil citations for the conditions of her dwelling. So that she would not have to stand trial for these citations, you arranged an agreement with [name2 withheld] to move out of her home so that it could be cleaned. After six months of volunteer service cleaning and hauling trash and debris from the home, she reentered the home and agreed to take steps to make the house livable again, having the electricity, gas and water reconnected, etc. You negotiated an agreement for her to remain in the house, subject to monthly inspections. You are responsible for these monthly inspections and have indicated that there are still potential opportunities for additional civil citations and/or condemnation of the house.

As a thanks to you and [name3 withheld], a co-worker on this case, [name2 withheld] sent two gift certificates of twenty-five dollars each. Realizing that you would have a conflict of interest if you personally accepted these gifts, you have asked if you could donate them to a specific charitable organization (Hearts and Hands) that has helped [name2 withheld], thereby avoiding hurting her by rejecting her token of appreciation.

Section 19A-16(c) states:

"A public employee must not knowingly accept a direct or indirect gift from any

individual or organization that the public employee knows or reasonably should

know:

(4) has an identifiable economic interest that is different from that of the general public, which the public employee may substantially affect in performing the public employee’s official duties."

Further, Section 19A-16(f) of the Ethics Law states that:

"A public employee who receives a gift that the public employee must not accept

under this section must report the gift to the Commission, if otherwise required to

report it, and return the gift to the donor or transfer the gift to the County."

The Commission, therefore advises you that you may not accept these gifts and donate them to Hearts and Hands. Your only lawful choices are to: (1) return the gift certificates to [name2 withheld]; or (2) transfer the gift certificates to your department. It would be permitted, however, for you to either: (1) return the gifts with a note explaining your predicaments and suggesting that [name2 withheld] make the donation herself; or (2) suggest to your department head that the gift certificates might be so donated.

Thank you for bringing this matter to the Commission and don’t hesitate to call our office if you have any questions concerning this decision.

BMCN:jw

[Advisory Opinion 1995-8]

April 11, 1995

Dear [name1 withheld]

The Montgomery County Ethics Commission has received your request for a waiver of the Ethics Law.

You have provided the Commission with the following information:

You have been asked to represent and provide legal services to the estate of [name2 withheld]. [name2 withheld]’s son and personal representative, [name3 withheld], is owner of [a facility]. This [facility] is located at the Poolesville Golf Course which has a lease with the Revenue Authority. You are a member of the Montgomery County Revenue Authority Board and may be asked to vote on matters pertaining to said lease. The lease in question, however, is not renewable for another 35 years and you have advised us that you do not expect any matter to come before your Board which would affect said lease or business.

After consideration of the information you provided, the Commission determined that there is no conflict of interest at this time in your representing the estate. However, if the [facility] defaults in their agreement with the Revenue Authority or if any other circumstances arise which bring said lease to the Revenue Authority for your consideration and action, you should then disclose your relationship with the estate and recuse yourself from any discussion or vote in the matter.

The Commission hopes that this decision addresses your concern and invites you to call the Commission office if you have any questions.

Sincerely,

[signed]

Jay L. Cohen, Chairman

[Advisory Opinion 1995-9]

MEMORANDUM

TO: [name withheld]
Germantown Investigative Section

FROM: Barbara McNally
Executive Secretary, Ethics Commission

SUBJECT: Donations of Computer Equipment

Date April 16, 1995

The Ethics Commission has received and reviewed your request for approval to accept a donation from the Hughes Network System in Gaithersburg, MD. You have provided the following information to the Commission:

The Hughes Network has recently pledged a computer system and training to the Germantown Investigative Section which is housed within the Germantown District Police Station. The computer is a Hewlett Packard 286 with supporting screen and keyboard. Hughes has also pledged to offer word processing training at their facility.

In a phone conversation with me, you indicated that there was no solicitation of the Hughes Network to make this donation and that they are donating this equipment freely and with no expectations. In addition, you indicated that the donation is being made to the Germantown Investigative Section for use by the Germantown District detectives for criminal warrant management and word processing.

In considering your request, the Commission reviewed Section 19A-16(e) removing unsolicited gifts to a County agency from the prohibitions of Section 19A(c) which concerns accepting gifts under certain circumstances. Therefore, the Police Department is free to accept the donation.

Thank you for bringing this matter to the attention of the Ethics Commission and please don’t hesitate to contact our office if you have any questions concerning this or any other matter.

You have requested an advisory opinion regarding a recent invitation to the Office to attend a golf and dinner outing hosted by the Montgomery County Revenue Authority (Revenue Authority). Generally, you wish to know whether attending this function as guests of the Revenue Authority would violate any provisions of the Montgomery County Ethics Law.

The following information was included in your request. The Revenue Authority is an instrumentality of the Montgomery County Government and is established pursuant to Chapter 42 of the Montgomery County Code 1994, as amended. The Office of the County Attorney provides legal representation and advice to the Revenue Authority. The Revenue Authority operates several public golf courses in the County as one of its duties. The invitation extended to the Office of the County Attorney involves the Revenue Authority providing to each person who attends: 18 holes of golf; a golf cart (two persons per cart); and dinner following golf. You have indicated that the costs associated with these amenities are: $20 per person greens fees, and $10.00 per person for a golf cart. Although dinner will be provided by the Potomac Valley Lodge, The Revenue Authority will cover the expense of the meal. It is also your understanding that the golf course and clubhouse will remain open to the public during the outing.

Based upon this information, you have asked whether the outing or any portion of it constitutes a gift and, if so, whether it is a gift that may be accepted by the members of the office. See §19A-16 of the Montgomery County Code 1994, as amended. Further, you have asked whether the use of the golf course constitutes an improper use of a County agency facility. See §19A-14 of the Montgomery County Code 1994, as amended. For the reasons discussed below, it is the opinion of the Ethics Commission that the attendance of the employees of the Office of the County Attorney at the Revenue Authority golf outing does not violate the Ethics Law.

The Ethics Law specifically includes the Revenue Authority within the definition of a County agency. §19A-4(a)(3) of the Montgomery County Code 1994, as amended. In addition, the Ethics Law provides the following restrictions upon acceptance of unsolicited gifts and the use of public facilities:

(c) A public employee must not knowingly accept a direct or indirect gift from any individual or organization that the public employee knows or reasonably should know:

* * *

(2) does business with the County agency with which the public employee is affiliated . . .

* * *

(d) Subsection (c) does not apply to:

(1) meals and beverages under $50 per event or higher amount, not to exceed $100, that the Commission sets . . .

§19A-16(c) and (d) of the Montgomery County Code 1994, as amended.

(c) A public employee must not use any county agency facility, property, or work time for personal use or for the use of another person, unless the use is:

(1) generally available to the public; or

(2) authorized by a County law, regulation, or administrative procedure.

§19A-14(c) of the Montgomery County Code 1994, as amended.

The dinner portion of the outing provided to all attendees is within the clearly permitted gift limits under §19A-16(d), which allows gifts of "meals and beverages under $50 per event . . . ." Although no dollar figure was provided in your memorandum, it is assumed for purposes of this advisory opinion that the cost of the dinner per person does not exceed the $50 limit.

The more complicated analysis involves the nature of the golf passes and the use of a County facility. For purposes of this advisory opinion, the Ethics Commission assumes that the use of the golf course and golf carts is a gift as defined under the Ethics Law and that the gift was unsolicited. Based upon these assumptions, the Commission must consider whether the Revenue Authority does business with the Office of the County Attorney, which would preclude the acceptance of the gift under §19A-16(c) set forth above. It is the opinion of the Ethics Commission that the Revenue Authority does not "do business" with the County Attorney’s Office in the sense intended by the Ethics Law. Rather, the two agencies work together for the befit of the County Government and in furtherance of the County’s operations. Moreover, inasmuch as the invitation permits all members of the Office to participate, the circumstances suggest that this is a gift that may be accepted by the Office of the County Attorney. If the invitation to the golf outing were solicited by the Office of the County Attorney, the Commission would have to reconsider its opinion to take into account the provisions for solicitations of gifts. §19A-16(a) and (b) of the Montgomery County Code 1994, as amended.

The Ethics Law specifically prohibits a public employee from using "any County agency facility, property, or work time for personal use or for the use of another person, unless the use is . . . generally available to the public, or . . . authorized by a County law, regulation, or administrative procedure." §19A-14(c) of the Montgomery County Code 1994, as amended. The use of the Revenue Authority golf course, although a public facility based upon its ownership by a County agency, is being used for what amounts to a morale-building event in that one agency is showing appreciation for the work performed by another agency. This is further shown by the office-wide invitation to the Office of the County Attorney. As a result, the commission finds that the participation in the golf outing is not the personal use of a County agency facility.

Based on the reasons set forth in this advisory opinion, the Ethics Commission has determined that the invitation to the golf outing extended by the Revenue Authority to the Office of the County Attorney may be accepted and does not conflict with the Ethics Law. This opinion is based upon the facts stated herein and, in the event that different facts arise, the Ethics Commission would need to address those new circumstances separately. If you have any questions, please do not hesitate to contact the Commission.

The Ethics Commission has received and reviewed your request for approval to accept a donation from [name2 withheld], a member of your Tactical Section. You have provided the following information to the Commission:

Mr. Fitzgerald has recently upgraded his personal system at home and would like to donate the following equipment to the Special Operations Division:

1 Zenith 14″ color monitor, serial #646-95Z2700

1 Panasonic printer, model KXP1091Z

1 Zenith keyboard

1 Zenith CPU monitor, model FX-248-50, serial #630AH091Z

In your memo you indicated that this offer is made with no expectations.

In considering your request, the Commission reviewed Section 19A-16(e) removing unsolicited gifts to a County agency from the prohibitions of Section 19A-16(c) which concerns accepting gifts under certain circumstances. Therefore, the Police Department is free to accept the donation.

Thank you for bringing this matter to the attention of the Ethics Commission and please do not hesitate to contact our office if you have any questions concerning this or any other matter.

You have requested an advisory opinion from the Ethics Commission concerning the fundraising efforts of the Montgomery County Community Partnership (MCCP), which works in conjunction with the Montgomery County Substance Abuse Program of the Department of Family Resources (DFR). Your written request and the additional comments of Martha Rosacker of DFR at the June meeting of the Ethics Commission provided the following information.

The MCCP was established in 1991 by a federal grant to the County with the purpose of working on a variety of substance abuse related issues for youths and adults. The MCCP is a community-wide organization that has pursued a goal of becoming self-sustaining. The current federal grant requires that the leadership of the MCCP include the local representatives on the MCCP Board. The local representatives who have participated during the initial phases of the program include the Office of the County Executive, the County Council, the Department of Family Resources, the Montgomery County Police Department, and Montgomery County Public Schools. The MCCP has reached a point where it is ready to pursue self-sustaining funding, beginning with seeking a County contract, and has obtained a designation as a 501(c)(3) organization for IRS purposes, which renders it a private non-profit organization. It is the transition from a government office to a private entity that presents the questions concerning the continued participation of County officials and employees in the MCCP and especially as the MCCP increases its fundraising activities to seek contributions from larger businesses in the area. The MCCP meets approximately every six months and all members of the MCCP Board are listed on the letterhead for the Board, which is then used for mailings in its fundraising efforts.

In light of the benefits of the program and the continued involvement of the local government representatives, you have asked whether there is some limited capacity in which the local officials may remain a part of the MCCP Board without presenting a conflict of interest under the Ethics Law. The Commission has determined that there are three issues that must be addressed in evaluating your request: (1) the extent of the voting authority that may be exercised by the local MCCP Board; (2) the extent to which these officials may participate in fundraising on behalf of the MCCP; and (3) the use of County titles on MCCP letterhead.

The Montgomery County Ethics Law provides that a public employee must not participate in any matter that the employee knows or reasonably should know involves a business in which the public employee is an officer, director, trustee, partner or employee. An exception exists, however, when the public employee discloses the relationship, is not compensated by the organization, and has no managerial responsibility or voting authority on matters as a member of the organization’s governing body. §§19A-11(a)(2)(A) and 19A-11(b)(5) of the Montgomery County Code, as amended. The use of County or agency titles in connection with any private enterprise, however, must be expressly authorized by the Chief Administrative Officer. §19A-14(b) of the Montgomery County Code.

In addition, the Ethics Law provides specific parameters for the solicitation of gifts, which should be reviewed to discern the extent to which any public employee may participate in the fundraising efforts of the MCCP. §19A-16 of the Montgomery County Code, a copy of which is attached for your reference. Generally, a public employee must not solicit a gift from any person who does business with the County agency with which the public employee is affiliated and must not solicit a gift while identifiable as a County employee. Moreover, the solicitation must not be conducted during official work hours or utilizing County supplies and equipment. There are instances in which a public employee may solicit gifts pursuant to an Executive Order when the County and a private non-profit organization are formally cooperating on a particular project. §19A-16(b)(3) of the Montgomery County Code.

Based upon these provisions of the Ethics Law, the Ethics Commission has determined that the County Executive and County Council representatives may participate on the MCCP Board as ex officio members, that is, non-voting members. This should accommodate the interests of both the MCCP and the local elected officials. The other public employees representing the County agencies may participate on the Board and vote on all matters except those which involve their particular agency.

The participation of the County employees in the fundraising efforts of the MCCP presents a more difficult issue and more information would be needed to determine whether any solicitation by the County members is permitted by the Ethics Law. Generally, however, no direct solicitation would be permitted from a business with which the County has a contract. If the MCCP and the County are formally cooperating in a joint program, an Executive Order permitting solicitations may be appropriate. The Department of Family Resources may wish to speak with its assigned legal advisor in the Office of the County Attorney for further advice on preparing such an order.

Finally, unless and until express approval is obtained from the Chief Administrative Officer, the County agencies and offices listed on the letterhead of the MCCP Board should be removed. §19A-14 of the Montgomery County Code.

If you have any other questions regarding this decision, please feel free to contact the Ethics Commission.

You have requested an advisory opinion from the Ethics Commission regarding the issues affecting a job share position whereby the Department of Facilities and Services (DFS) will hire an architect to work part-time with DFS, while maintaining other employment. You indicated that the applicants may have existing architectural design businesses and/or contracts, and that they may wish to continue in those positions or to enter into new ventures once becoming a County employee. You would like to be able to provide them with some idea of the restrictions that would be imposed upon those activities prior to their accepting employment with the County.

Generally, the County treats any employment other that that with the County as outside employment. The Ethics Law contains several sections that address issues related to outside employment. I have attached photocopies of the relevant provisions of the Ethics Law that address conflicts of interest (§19A-11); outside employment restrictions and approval requirements (§19A-12); the typical conditions imposed on outside employment approvals; use of County facilities or equipment (§19A-14); and the elements for obtaining a waiver if necessary (§19A-8). As you can see, there are many situations addressed by these provisions, and the Commission must review the application of those provisions on a case-by-case basis. This information should provide an indication to the job applicants of the requirements that the County has regarding their employment for the County as well as various private endeavors.

If you have any other questions based upon individual circumstances, please do not hesitate to contact the Commission.

You have requested advice regarding [name2 withheld]’s status as contract administrator of three contracts that allow the County to procure computer systems analysis, programming, and consulting services on a task order basis. Each task order is developed with the assistance of County staff from various departments and competed among the three contractors and evaluated by a panel of raters, one of whom is [name2 withheld]. Thereafter, [name2 withheld] and the task order project manager make a recommendation to the Director, who makes the final selection.

[name2 withheld]’s brother-in-law is president and owner of a local computer services firm. It has come to [name2 withheld]’s attention recently that his brother-in-law’s firm occasionally teams up with one of the three contractors for non-County business. He further understands that his brother-in-law’s firm is not dependent upon this relationship for its survival as a business or a majority of its revenue. The question presented, however, is whether [name2 withheld] may continue to administer these contracts.

(2) the public employee’s spouse and the spouse’s siblings, parents, grandparents, children, grandchildren; and

(3) the spouses of these relatives.

§19A-4(n) of the Montgomery County Code 1994, as amended. Thus, [name2 withheld]’s brother-in-law is a relative under the Ethics Law.

The Ethics Law further provides:

(a) Prohibitions. Unless permitted by a waiver, a public employee must not participate in;

* * *

(2) any matter if the public employee knows or reasonably should know that any party to the matter is:

* * *

(B) any business in which a relative has an economic interest, if the public employee knows about the interest;

* * *

(F) any business that is engaged in a transaction with a County agency if:

(i) another business owns a direct interest in the business;

(ii) the public employee or a relative has a direct interest in the other business; and

(iii) the public employee reasonably should know of both direct interest . . .

§19A-11(a)(2)(B) and (F)of the Montgomery County Code 1994, as amended.

The Ethics Commission may grant a waiver of these provisions if it finds that;

(1) the best interests of the County would be served by granting the waiver;

(2) the importance to the County of a public employee performing his or her official duties outweighs actual or potential harm of any conflict of interest; and

(3) granting the waiver will not give a public employee an unfair advantage over other members of the public.

§19A-8(a) of the Montgomery County Code 1994, as amended.

Analysis

Based upon information provided, there is a conflict of interest that precludes [name2 withheld] from participating in the administering of the contract with which his brother-in-law does business. [name2 withheld]’s brother-in-law is a relative who has an economic interest in a business that is doing business with the County. The fact that the economic interest derives from non-County transactions may support the grant of a waiver, but does not eliminate the existence of the conflict.

At his juncture, the Commission is not able to evaluate the situation for purposes of a waiver, because there was not enough detail provided in your memorandum. The Commission finds that, absent a waiver, [name2 withheld] must recuse himself from the administering of the subject contract. If he decides to seek a waiver from this Commission, he should provide detailed information that addresses both the nature and scope of his brother-in-law’s relationship with the contractor and each of the three waiver elements listed above. See §19A-11 of the Montgomery County Code.

If you have any questions regarding this decision, please do not hesitate to contact the Ethics Commission.

RE: Request for Advisory Opinion—Conflict of Interest of Advisory Board Members

You have asked for advice regarding the members of the Bethesda-Chevy Chase Citizens Advisory Board who are attorneys. In particular, you have indicated that occasionally these individuals are retained as attorneys for developers or civic associations to handle zoning and other land use issues. The role of the Advisory Board members includes providing advice and input on some of these same matters. This has raised the questions of when a Board member must recuse himself from participating in discussion and/or a vote on such a matter when it involves their client. A related question arises as to when a more general discussion of concepts would be permitted or prohibited.

Based upon the information you have provided, the Commission must advise you that a Board member may not participate in either the discussion or the vote regarding a matter involving a client that the Board member represents as an attorney. This is based upon §19A-11(a)(2)(E) of the Ethics Law, which states in pertinent part:

(a) Prohibitions. Unless permitted by a waiver, a public employee must not participate in:

* * *

(2) any matter if the public employee knows or reasonably should know that any party to the matter is:

* * *

(E) any business or individual that is a party to an existing contract with the public employee or a relative, if the contract should reasonably result in a conflict between private interests and official duties . . .

Based on this provision, an Advisory Board member must not participate in the discussion or the vote on a particular case that involves his client. The Advisory Board member may participate, however, in a general discussion of issues that are unrelated to any clients they may represent in an attorney capacity.

If you have any questions concerning this decision, please do not hesitate to contact the Commission.

You have requested an advisory opinion from the Commission regarding certain events to which you are invited from time to time in your capacity as County Attorney. Occasionally, the nature of the invitation is to join a company in its office outing or to participate in an outing that is charitable in nature. In these situations, the cost for participation is paid by the company or the company’s donation to a charity covers the cost. Some invitations come from companies with which the County has a contract for services, or which the County regulates, or which are involved in litigation. You explained that the nature of your position requires you to associate with and socially to interact with individuals who represent businesses and law firms that regularly do business with the County better to understand the problems associated with doing business with the County and to assure that "lines of communication" are open between the County and the business community.

You have requested some insight into the criteria for determining under what circumstances you are precluded from accepting invitations and when you may accept such invitations under Montgomery County Ethics Law. You provided two recent examples of events that raised this question: 1) an invitation from a representative of Bell Atlantic to participate in his golf foursome in an event sponsored for the benefit of Montgomery College; and 2) an invitation from Cable TV Montgomery to play golf in an all-day event sponsored by the company. In these situations, you understand that Bell Atlantic has committed to pay an amount as a donation to the College that will allow it a certain number of players in the tournament; there is no option for you to pay the fees associated with the event on your own.

Applicable Provisions of Ethics Law

Your request involves the interpretation of the gift section of the Ethics Law. Generally, a public employee may not solicit a gift in their capacity as a public employee and may not accept a gift from a lobbyist, an individual or organization that does business with the agency with which the employee is affiliated. §19A-16(a) and (c) of the Montgomery County Code 1994, as amended. A public employee may accept a gift from these individuals, however, if the gift is of a certain type. §19A-16(d) of the Montgomery County Code.

The section that appears to address the golf invitation appears in §19A-16(d)(5) of the Ethics Law, which permits acceptance of :

[G]ifts to a public employee who must file a public financial disclosure statement under subsection 19A-17(a), if the gift:

(A) is a courtesy extended to the office; and

(B) consists of tickets or free admission for the employee and one guest to attend a charitable, cultural, civic, labor, trade, sports, or political event, including meals and beverages served at the event; . . .

The response to your inquiry depends upon whether your position as County Attorney is an "office" within the Ethics Law and whether the types of golfing events are within the types that are listed above.

Analysis

The Commission has determined previously that elected officials are within the scope of "office" in §19A-16(d)(5) of the Ethics Law. These individuals file public financial disclosure statements and frequently receive unsolicited invitations to events based upon the position held by them. To date, the Commission has not issued any rulings concerning whether or not department heads, who are appointed rather than elected, are also within the scope of the term "office". Given recent amendments to the Ethics Law, the Commission is reluctant to reach this issue now, and finds that it does not need to in this case. Instead, The Commission has found simply that the position of the County Attorney, because it is established by the Montgomery County Charter, constitutes an office for purposes of §19A-16(d)(5).

The invitation to the charitable golf event is within the types of events delineated in §19A-16(d)(5) of the Montgomery County Code. As a result, attendance as a guest would be permitted. The pure business functions, however, appear to be outside the scope of the permitted events. This means that attendance as a non-paying guest would not be permitted by the Ethics Law, although attendance as an individual, paying your own fees, and without using your County title would be permissible.

Hopefully, this provides you with the information you need to make these determinations on a case-by-case basis. If you have any questions concerning this opinion, please do not hesitate to contact the Commission.

You have requested a waiver to permit you to provide consulting services to a corporation that does business with Montgomery County. In support of your request, you have submitted the following information.

On August 1, 1994, you retired from employment with Montgomery County as Chief, Division of Parking, Department of Transportation. Thereafter, you established a parking consultant firm, JT Associates. You have negotiated a contract to provide consulting services to a company that wishes to respond to several requests for proposals issued by Montgomery County. Your services for the company would involve consulting on transportation/parking studies with particular orientation toward local government. During your employment with the County, you had been responsible for administering a contract with the company in 1992, which responsibilities included approval of requests for payment and study reports. You have indicated that you would be a consultant of the company and not an employee. Because of the provisions of the Ethics Law regarding former employment, you have requested a waiver to permit you to provide services to the company while the company seeks contracts with the County.

The Ethics Law provides certain restrictions on former public employees:

(a) A former public employee must not accept employment or assist any party, other than a County agency, in a case, contract, or other specific matter for 10 years after the last date the employee significantly participated in the matter as a public employee.

(b) For one year after the effective date of termination from County employment, a former public employee must not enter into any employment understanding or arrangement (express, implied, or tacit) with any person or business that contracts with a County agency if the public employee:

(1) significantly participated in regulating the person or business; or

(2) had official responsibility concerning a contract with the person or business (except a non-discretionary contract with a regulated public utility).

§19A-13 of the Montgomery County Code 1994, as amended.

At this point, the one-year prohibition has expired and need not be addressed further. To decide the 10-year issue, however, the Commission does not have sufficient information to either (1) determine whether or not the same "case, contract or other specific matter" is involved, or (2) determine whether or not a waiver would be appropriate pursuant to §19A-8(b) of the Montgomery County Code 1994, as amended.

Based upon the information provided, the Commission is not able to make any of these findings and, therefore, must deny the waiver. In the event additional detail is available and you would like to renew your request, the Commission will review the information in the context of the discussion in this decision. If you have any questions regarding this decision, please do not hesitate to contact the Commission.

You have requested an advisory opinion from the Commission regarding whether or not you may accept a particular gift from Bell Atlantic. The gift tendered to you consists of two seats at a dinner honoring Douglas M. Duncan hosted by the Chamber of Commerce on November 3, 1995 at the Lakewood Country Club. The value of the gift is Two Hundred Dollars ($200.00).

Section 19A-16(c) prohibits your acceptance of any "direct or indirect gift" from any individual or organization which:

(1) is registered, or must register, as a lobbyist on a matter that is or could be considered by the County agency with which the public employee is affiliated;

(2) does business with the County agency with which the public employee is affiliated;

(3) owns or operates a business that is regulated by the County agency with which the public employee is affiliated; or

(4) has an identifiable economic interest that is different from that of the general public, which the public employee may substantially affect in performing the public employee’s official duties.

As already discussed with your office, in order for us to advise you whether or not Section 19A-16(c) prohibits your acceptance of such a gift, we would first need to know the precise relationship between your department and Bell Atlantic (including its affiliates). For instance: (1) Does Bell Atlantic lobby your department? (2) Does Bell Atlantic do business with your department? (3) Is Bell Atlantic regulated by your department? (4) Can the manner in which you perform your job substantially affect an identifiable economic interest held by Bell Atlantic? Without complete answers to these questions, we are unable to definitively advise you whether or not you are prohibited under Section 19A-16(c) from accepting this gift.

If it turns out that you are prohibited by Section 19A-16(c) from accepting this gift, then you may ask the Commission for a waiver pursuant to Section 19A-8(a). Please understand, however, that in order for the Ethics Commission to grant such a waiver it would first need to be presented with specific facts upon which it could find the following:

(1) the best interests of the County would be served by granting the waiver;

(2) the importance to the County of a public employee performing his or her official duties outweighs the actual or potential harm of any conflict of interest; and

(3) granting the waiver will not give a public employee an unfair advantage over other members of the public.

This is a three-part test, each part of which must be established before the Ethics Commission can exercise its discretion to either grant or deny any waiver to the prohibitions contained in Section 19A-16(a) and Section 19A-16(c).

Finally, if you choose to accept the gift please remember that its receipt must be reported on your annual financial disclosure forms.

In conclusion.

If you believe that the acceptance of this gift is prohibited by Section 19A-16(a) and/or Section 19A-16(c) of the Ethics Law, and desire a waiver in order to accept the gift, please provide the Commission with the facts which you believe support a waiver.

If you know that the acceptance of this gift is not prohibited by the Ethics Law because Bell Atlantic does not lobby your department, does no business with your department, is not regulated by your department and has no identifiable interests as noted above, then you may accept the gift and simply report it on your financial disclosure statement. Of course, if you desire the protection of an Advisory Opinion in that regard, please feel free to submit the aforementioned information for our review.

If you believe that your acceptance of this gift is exempted from Section 19A-16(c) by one of the subsections discussed in footnote one supra, please provide us with the additional documentation as identified in that footnote along with any other information which you believe would assist the Commission in analyzing and resolving this matter.

You have asked for advice regarding the support staff being utilized to serve the Commission of the Humanities, which was transferred to the Department of Libraries in July 1995. In particular, you explained that the Department has assigned a professional position to support Commission activities, but that the volume of clerical work requires additional services. Upon using the County’s primary temporary provider to record minutes of the Commission, the results were unsatisfactory. The commission Chair offered to have his private secretary take the minutes and pay the secretary the same rate as the temporary. You seek advice as to whether this arrangement meets the requirements of the Ethics Law.

The Ethics Commission has reviewed your request and, based upon the information provided, finds no issue involving the Ethics Law as long as the Commission Chair does not (directly or indirectly) receive any financial benefit from the fact that his secretary was performing the service for the Commission and was being paid for the work by the County. This advisory opinion does not address any procurement or personnel issues that may be involved with this arrangement.

If you have any questions concerning this decision, please do not hesitate to contact the Commission.

cc: Barbara McNally, Executive Secretary

Montgomery County Ethics Commission

[Advisory Opinion 1995-20]

December 13,1995

Re: Request for Advisory Opinion

Dear [name withheld]:

You have requested an advisory opinion from the Ethics Commission regarding your service on the Board of Directors of Montgomery Community Television (MCT) following your employment with Montgomery County. Your inquiry involves whether these activities are affected in any way by the provisions of the Ethics Law applicable to former employees.

The information you have provided is as follows. You have described MCT as a non-profit corporation that facilitates production of various community programs, including public access, daily news and public affairs programs. You also explained that approximately 92% of the revenue for operation of MCT derives from financial support provided by the County. Members of the Board of Directors of MCT are compensated and file financial disclosure statements with the Ethics Commission. You have been a Board member since March 1995 and have helped represent MCT in the annual budget process before the County Council, participated in MCT’s negotiations with County staff on the renewal of service contracts, and met with County staff concerning MCT’s total budget and expenditures.

In comparison, your employment with Montgomery County involved work in the Office of Management and Budget. In 1980, you had responsibility for cable television franchising, and through 1985, you participated in recommending that an entity like MCT be created to handle local cable matters with some separation from the County. You indicated that you did not have the authority to decide on the establishment of MCT. In 1985, you were assigned to a support role involving the lawsuit against the cable franchise for failure to comply with its contract, but you do not recall any particular responsibilities involving MCT. In 1987, you supervised capital and operating budgets for several agencies, including grants and contracts for MCT. During the period between 1987 and 1991, you had responsibility for explaining the County Executive’s recommended budget for cable television activities, but it was a very small part of your workload. You also indicate that you had no authority to make decisions regarding the cable issues, although you had the opportunity to make recommendations regarding the budget for cable activities. After your retirement in 1991, you worked for the County on several special projects, but none of them involved cable issues. These contracts ended in August 1994.

As you know, the Ethics Law provides specific limitations on the activities of former public employees:

(a) A former public employee must not accept employment of assist any party, other than a County agency, in a case, contract, or other specific matter for 10 years after the last date the employee significantly participated in the matter as a public employee.

(b) For one year after the effective date of termination from County employment, a former employee must not enter into any employment understanding or arrangement (express, implied, or tacit) with any person or business that contracts with a County agency if the public employee:

(1) significantly participated in regulating the person or business; or

(2) had official responsibility concerning a contract with the person or business (except a non-discretionary contract with a regulated public utility).

(c) Significant participation means direct administrative or operating authority to approve, disapprove, or otherwise decide government action with respect to a specific matter, whether the authority is intermediate or final, exercisable alone or with others, and exercised personally or through subordinates. It ordinarily does not include program or legislative oversight, or budget preparation, review, or adoption.

§19A-13 of the Montgomery County Code 1994, as amended.

At this juncture, the one-year restriction has expired, leaving the issue of whether the prohibitions set forth in the 10-year provision apply to the type of work you handled for the County. Based upon your representation that it has been more than 10 years since your work on cable issues and with MCT involved any decision-making responsibility, either interim or final, the Ethics Commission finds that you may participate as a member of the MCT board of directors. In the event that you should recall further details of the work performed by you involving cable and MCT issues during the past 10 years, and if that information suggests that you significantly participated in such a matter, you would need to return to this Commission to request a waiver, or withdraw from participating in the conflicting activity with MCT until the 10 years has expired.

If you have any questions concerning this decision, please do not hesitate to contact the Commission.

You have requested an advisory opinion from the Ethics Commission regarding an employee under your supervision. A similar request has been submitted to the State Ethics Commission to address any issues based on the state Ethics Law.

In your letter, you explain that the employee works part-time for your division and conducts inspections and monitoring of group homes for the elderly in Montgomery County, which involves the application of both County and State regulations. You further explain that the employee owns and operates a group home in Howard County. The employee seeks to place her mother in a group home in Montgomery County, and the home she is considering is one of those she has been assigned to inspect and monitor. You have further explained that the home is managed by a company that has four other homes in Montgomery County. For purposes of this analysis under the ethics law, the Commission views all five homes as a single unit, so that a conflict present in one of the homes would carry over to each of the other four homes.

Based upon the information you have provided, the Ethics Commission must advise you that the employee may not inspect or monitor any of the five group homes, because there would be a conflict of interest in doing so. §19A-11 of the Montgomery County Code, as amended. To remedy this situation, the employee could be assigned to inspect and monitor any of the other approximately 40 other group homes run by others in the County. Furthermore, in order to avoid the appearance of impropriety, the Commission has concluded that the notification to the group home provider that a new inspector will be assigned should come from the Department, rather than the employee, and should be issued in advance of the change. With these conditions, there should be no remaining issue under the Ethics Law.

If you have any questions concerning this decision, please do not hesitate to contact the Commission.